1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE RAMON CRAVER, No. 2:20-cv-02327 WBS DB P 12 Plaintiff, 13 v. ORDER 14 C. FLOYD, 15 Defendant.
16 17 Plaintiff is a state inmate proceeding pro se with an action pursuant to 42 U.S.C. § 1983. 18 Plaintiff claims that defendant violated his Eighth Amendment rights. Presently before the court 19 is plaintiff’s second motion to compel discovery. (ECF No. 27.) For the reasons set forth below, 20 the court will deny plaintiff’s motion. 21 MOTION TO COMPEL 22 I. Background 23 This action proceeds on plaintiff’s original complaint against California Department of 24 Corrections and Rehabilitation (“CDCR”) Dietician, C. Floyd. (ECF No. 1.) Following the 25 screening of this complaint and defendant filing an answer, the court issued a Discovery and 26 Scheduling Order (“DSO”) on December 7, 2021. (ECF No. 21.) This order provided that 27 parties could conduct discovery until April 15, 2022. (Id. at 6.) The order specified that “all 28 //// 1 requests for discovery pursuant to Federal Rules of Civil Procedure 31, 33, 34 or 36 shall be 2 served not later than sixty days prior to that date.” (Id.) 3 Plaintiff filed a previous motion to compel on April 15, 2022. (ECF No. 23.) The court 4 granted in part and denied in part that motion finding that plaintiff had timely filed a request for 5 production of documents. (ECF No. 26 at 6-7.) The court ordered defendant to provide 6 objections or responses to plaintiff’s request and extended the discovery deadline solely for this 7 purpose. (Id.) 8 Plaintiff filed the instant motion to compel on June 24, 2022. (ECF No. 27.) Defendant 9 Craver filed a response (ECF No. 30) and plaintiff filed a reply to defendant’s response (ECF No. 10 31). 11 II. Plaintiff’s Motion 12 Plaintiff seeks an order compelling defendant to produce the documents requested in 13 plaintiff’s Request for Production of Documents, Set Three. (ECF No. 27 at 2.) In this discovery 14 request, plaintiff sought nutritional facts for eleven food items and “documents pertaining to VS 15 Vomiting Assessment Refusal Forms, and GI Vomiting Assessment Refusal Forms.” (Id. at 2, 7.) 16 Defendant objected to the food information requests on the grounds that they were “compound 17 burdensome, and harassing, and not proportional to the needs of the case” as well as because they 18 were vague and ambiguous. (Id. at 3, 11-15.) Defendant also provided a response stating that 19 beyond the objections, they were unable to comply with the request as “this information is 20 unavailable” and that complying with the request would require a speculative response. (Id.) 21 Plaintiff raised similar objections to the VS and GI Vomiting Assessment Refusal Forms and also 22 stated that “defendant is not in possession of such documents.” (Id. at 15-16.) 23 Plaintiff contends that his requests should be granted and discovery should be compelled 24 as the requested documents are material “in order for [plaintiff] to survive summary judgment.” 25 (Id. at 5.) Specific to the nutritional information, plaintiff argues that discovery is not 26 burdensome, confusing, or prejudicial as defendant provided numerous pages of nutritional fact 27 documents in response to plaintiff’s prior discovery request. (Id. at 5-6.) Plaintiff also notes that 28 this information is important for determining plaintiff’s caloric intake. (Id. at 7.) Finally, 1 plaintiff argues that if the documents are not in defendant’s possession “[i]t’s easy for defendant 2 to call the company the food is ordered from [and] get the information on nutrition facts” to be 3 provided to plaintiff in discovery. (Id.) 4 As to the VS and GI vomiting assessment refusal forms, plaintiff believes that defendant 5 claims plaintiff refused a vomiting assessment test. (Id. at 8.) He contends that the two vomiting 6 assessment refusal forms should exist as “refusal of medical treatment of any kind automatically 7 results in a refusal of medical treatment form being filed….” (Id.) 8 Plaintiff also mentions that he has not received a provisional transcript from his deposition 9 so that he can provide corrections though this does not appear to be a part of his discovery 10 request. (Id. at 4.) 11 III. Defendant’s Response 12 In opposition, defendant first argues that plaintiff’s motion should be denied as he failed 13 to comply with Federal Rule of Civil Procedure 37 requiring that a party seeking to compel 14 discovery certify that they conferred or attempted to confer with the opposing party. (ECF No. 30 15 at 2.) Defendant also argues that she has “met her discover obligations” as defense counsel 16 communicated “at length with officials at California Correctional Health Care Services (CCHCS) 17 and Mule Creek State Prison’s (MCSP) chief nurse” but “were unable to locate nutritional 18 information for specific food items provided to Plaintiff in 2020….” (Id.) Defendant notes that 19 she produced “documents and information supporting current nutritional information for some of 20 the food items” in plaintiff’s request but was unable to find responsive documents for some items. 21 (Id. at 2-3.) 22 Related to the vomiting refusal forms, defendant argues that she produced “voluminous 23 documents in response to request numbers 12 and 13” but was unable to provide any vomiting 24 assessment refusal forms as defendant “did not offer these assessments to Plaintiff.” (Id. at 3) 25 (emphasis omitted). Defendant also claims that on July 28, 2022 she produced “734 pages of 26 documents involving Plaintiff’s numerous refusals of examination and/or treatment while housed 27 at MCSP CTC” in a good-faith effort to resolve the discovery dispute. (Id.) 28 //// 1 Finally, defendant asserts that they should not be required to provide plaintiff with a free 2 copy of the deposition transcript as this is not contemplated by the Federal Rules of Civil 3 Procedure of the in forma pauperis statute. (Id. at 3-4.) 4 IV. Plaintiff’s Reply 5 Plaintiff’s reply largely addresses arguments that were raised in the initial motion. 6 Plaintiff clarifies that he was not requesting a free copy of the deposition transcript. (ECF No. 31 7 at 2.) Instead, plaintiff sought the transcript so that he could provide corrections. (Id.) Plaintiff 8 also agrees with defendant that the two requested vomiting assessment refusal forms do not exist 9 because defendant did not offer plaintiff a vomiting assessment. (Id. at 4.) 10 V. Legal Standards 11 Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery 12 regarding any non-privileged matter that is relevant to any party’s claim or defense and 13 proportional to the needs of the case, considering the importance of the issues at stake in the 14 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 15 resources, the importance of the discovery in resolving the issues, and whether the burden or 16 expense of the proposed discovery outweighs its likely benefit. Information within the scope of 17 discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). 18 In response to a request for production of documents under Rule 34, a party is to produce 19 all relevant documents in its “possession, custody, or control.” Fed. R. Civ. P.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE RAMON CRAVER, No. 2:20-cv-02327 WBS DB P 12 Plaintiff, 13 v. ORDER 14 C. FLOYD, 15 Defendant.
16 17 Plaintiff is a state inmate proceeding pro se with an action pursuant to 42 U.S.C. § 1983. 18 Plaintiff claims that defendant violated his Eighth Amendment rights. Presently before the court 19 is plaintiff’s second motion to compel discovery. (ECF No. 27.) For the reasons set forth below, 20 the court will deny plaintiff’s motion. 21 MOTION TO COMPEL 22 I. Background 23 This action proceeds on plaintiff’s original complaint against California Department of 24 Corrections and Rehabilitation (“CDCR”) Dietician, C. Floyd. (ECF No. 1.) Following the 25 screening of this complaint and defendant filing an answer, the court issued a Discovery and 26 Scheduling Order (“DSO”) on December 7, 2021. (ECF No. 21.) This order provided that 27 parties could conduct discovery until April 15, 2022. (Id. at 6.) The order specified that “all 28 //// 1 requests for discovery pursuant to Federal Rules of Civil Procedure 31, 33, 34 or 36 shall be 2 served not later than sixty days prior to that date.” (Id.) 3 Plaintiff filed a previous motion to compel on April 15, 2022. (ECF No. 23.) The court 4 granted in part and denied in part that motion finding that plaintiff had timely filed a request for 5 production of documents. (ECF No. 26 at 6-7.) The court ordered defendant to provide 6 objections or responses to plaintiff’s request and extended the discovery deadline solely for this 7 purpose. (Id.) 8 Plaintiff filed the instant motion to compel on June 24, 2022. (ECF No. 27.) Defendant 9 Craver filed a response (ECF No. 30) and plaintiff filed a reply to defendant’s response (ECF No. 10 31). 11 II. Plaintiff’s Motion 12 Plaintiff seeks an order compelling defendant to produce the documents requested in 13 plaintiff’s Request for Production of Documents, Set Three. (ECF No. 27 at 2.) In this discovery 14 request, plaintiff sought nutritional facts for eleven food items and “documents pertaining to VS 15 Vomiting Assessment Refusal Forms, and GI Vomiting Assessment Refusal Forms.” (Id. at 2, 7.) 16 Defendant objected to the food information requests on the grounds that they were “compound 17 burdensome, and harassing, and not proportional to the needs of the case” as well as because they 18 were vague and ambiguous. (Id. at 3, 11-15.) Defendant also provided a response stating that 19 beyond the objections, they were unable to comply with the request as “this information is 20 unavailable” and that complying with the request would require a speculative response. (Id.) 21 Plaintiff raised similar objections to the VS and GI Vomiting Assessment Refusal Forms and also 22 stated that “defendant is not in possession of such documents.” (Id. at 15-16.) 23 Plaintiff contends that his requests should be granted and discovery should be compelled 24 as the requested documents are material “in order for [plaintiff] to survive summary judgment.” 25 (Id. at 5.) Specific to the nutritional information, plaintiff argues that discovery is not 26 burdensome, confusing, or prejudicial as defendant provided numerous pages of nutritional fact 27 documents in response to plaintiff’s prior discovery request. (Id. at 5-6.) Plaintiff also notes that 28 this information is important for determining plaintiff’s caloric intake. (Id. at 7.) Finally, 1 plaintiff argues that if the documents are not in defendant’s possession “[i]t’s easy for defendant 2 to call the company the food is ordered from [and] get the information on nutrition facts” to be 3 provided to plaintiff in discovery. (Id.) 4 As to the VS and GI vomiting assessment refusal forms, plaintiff believes that defendant 5 claims plaintiff refused a vomiting assessment test. (Id. at 8.) He contends that the two vomiting 6 assessment refusal forms should exist as “refusal of medical treatment of any kind automatically 7 results in a refusal of medical treatment form being filed….” (Id.) 8 Plaintiff also mentions that he has not received a provisional transcript from his deposition 9 so that he can provide corrections though this does not appear to be a part of his discovery 10 request. (Id. at 4.) 11 III. Defendant’s Response 12 In opposition, defendant first argues that plaintiff’s motion should be denied as he failed 13 to comply with Federal Rule of Civil Procedure 37 requiring that a party seeking to compel 14 discovery certify that they conferred or attempted to confer with the opposing party. (ECF No. 30 15 at 2.) Defendant also argues that she has “met her discover obligations” as defense counsel 16 communicated “at length with officials at California Correctional Health Care Services (CCHCS) 17 and Mule Creek State Prison’s (MCSP) chief nurse” but “were unable to locate nutritional 18 information for specific food items provided to Plaintiff in 2020….” (Id.) Defendant notes that 19 she produced “documents and information supporting current nutritional information for some of 20 the food items” in plaintiff’s request but was unable to find responsive documents for some items. 21 (Id. at 2-3.) 22 Related to the vomiting refusal forms, defendant argues that she produced “voluminous 23 documents in response to request numbers 12 and 13” but was unable to provide any vomiting 24 assessment refusal forms as defendant “did not offer these assessments to Plaintiff.” (Id. at 3) 25 (emphasis omitted). Defendant also claims that on July 28, 2022 she produced “734 pages of 26 documents involving Plaintiff’s numerous refusals of examination and/or treatment while housed 27 at MCSP CTC” in a good-faith effort to resolve the discovery dispute. (Id.) 28 //// 1 Finally, defendant asserts that they should not be required to provide plaintiff with a free 2 copy of the deposition transcript as this is not contemplated by the Federal Rules of Civil 3 Procedure of the in forma pauperis statute. (Id. at 3-4.) 4 IV. Plaintiff’s Reply 5 Plaintiff’s reply largely addresses arguments that were raised in the initial motion. 6 Plaintiff clarifies that he was not requesting a free copy of the deposition transcript. (ECF No. 31 7 at 2.) Instead, plaintiff sought the transcript so that he could provide corrections. (Id.) Plaintiff 8 also agrees with defendant that the two requested vomiting assessment refusal forms do not exist 9 because defendant did not offer plaintiff a vomiting assessment. (Id. at 4.) 10 V. Legal Standards 11 Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery 12 regarding any non-privileged matter that is relevant to any party’s claim or defense and 13 proportional to the needs of the case, considering the importance of the issues at stake in the 14 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 15 resources, the importance of the discovery in resolving the issues, and whether the burden or 16 expense of the proposed discovery outweighs its likely benefit. Information within the scope of 17 discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). 18 In response to a request for production of documents under Rule 34, a party is to produce 19 all relevant documents in its “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The 20 purpose of discovery is to “remove surprise from trial preparation so the parties can obtain 21 evidence necessary to evaluate and resolve their dispute.” United States v. Chapman Univ., 245 22 F.R.D. 646, 648 (C.D. Cal. 2007) (quotation and citation omitted). 23 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may 24 move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 25 37(a)(3)(B). The court may order a party to provide further responses to an “evasive or 26 incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have 27 ‘broad discretion to manage discovery and to control the course of litigation under Federal Rule 28 of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting 1 Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). 2 VI. Analysis 3 A. Meet and Confer Requirement 4 At the outset of her response, defendant requests that the court deny plaintiff’s motion as 5 plaintiff “failed to comply with Rule 37 of the Federal Rules of Civil Procedure.” (ECF No. 30 at 6 2.) Defendant claims that plaintiff did not comply with Rule 37 as omitted “a certification that he 7 has, in good faith, conferred or attempted to confer with defense counsel” and did not confer with 8 defense counsel prior to filing the present motion. (Id.) 9 Rule 37(a)(1) of the Federal Rules of Civil Procedure requires that parties meet and confer 10 prior to filing a motion to compel discovery. In this district, this rule is applied through Local 11 Rule 251. The discovery and scheduling order issued by this court on December 7, 2021 states 12 that “unless otherwise ordered, Local Rule 251 shall not apply” to the discovery proceedings in 13 the present action. (ECF No. 21 at 5.) The court did not order parties to confer prior to filing a 14 motion to compel. 15 While it is preferable that parties resolve discovery disputes without the court’s 16 involvement, the meet and confer requirement incorporated into Local Rule 251 does not apply to 17 this action per the court’s December 7, 2021 order. See Lear v. Sahota, 2:18-cv-3099 MCE DB 18 P, 2020 WL 7406508, at *15 (E.D. Cal. Dec. 17, 2020). Requiring parties to meet and confer 19 would also be unproductive given that defendant represents that she does not have in their control 20 any of the documents requested in the motion to compel. (See ECF No. 30 at 2.) Thus, the 21 undersigned declines to deny plaintiff’s motion to compel based on plaintiff’s failure to meet and 22 confer with defendant before filing this motion. 23 B. Nutritional Information (Request Nos. 1-11) 24 In Plaintiff’s Request for Production of Documents, Set Three, Request Nos. 1-11 request 25 the production of “all documents relating to the nutrition facts and calorie count[s]” of eleven 26 different food items. (See ECF No. 27 at 11-15.) As defendant’s responses to these requests are 27 identical and the parties have addressed them as a group of requests, these eleven requests will be 28 discussed together. 1 In Plaintiff’s Request for Production of Documents, Set Three, Request Nos. 1-11 follow 2 the same form: “Produce all documents relating to the nutritional facts and calorie count of [food 3 item].” (Id.) 4 In response to each request, defendant provided the same objection and response:
5 Defendant objects to this request on the grounds that it is compound, 6 burdensome, and harassing, and is not proportional to the needs of the case. Defendant also objects on the grounds that it is vague and 7 ambiguous as to the phrase, “[food item].” Defendant also objects on the grounds that it is vague as to the time for which the 8 information is sought Subject to and without waiving the above objections, Defendant 9 responds as follows: Defendant is unable to comply with this 10 request, as this information is unavailable. Any attempt to comply with this request would require Defendant to manufacture a 11 speculative response, which is burdensome, confusing, and prejudicial. 12 13 (Id.) 14 Broadly, plaintiff’s requests appear relevant to his claims and proportional to the needs of 15 the case. Fed. R. Civ. P. 26(b)(1). However, plaintiff’s requests are overly vague. As indicated 16 by the plaintiff in his reply, plaintiff sought nutritional information for particular meals that he 17 was served during a specific period. (ECF No. 31 at 3.) By contrast, as stated, plaintiff’s requests 18 simply state the name of a food item (e.g. “roast beef 2.oz.”) without any additional specificity as 19 to when that item was served or other identifying information which could help identify 20 responsive documents. To this end, the court will sustain defendant’s objections to Request Nos. 21 1-11 on the grounds that these requests are vague and do not describe the requested documents in 22 sufficient particularity. 23 Beyond the objection, defendant also responds that the documents plaintiff is requesting 24 are unavailable to the defendant. (ECF No. 27 at 1-11.) Defendant’s response to the motion to 25 compel explains that defendant communicated with CDCR officials to find any relevant 26 nutritional documentation in response to plaintiff’s prior request and that defendant produced 27 these documents. (ECF No. 30 at 2-3.) Attached to defendant’s response is a declaration from 28 defense counsel which similarly states that “staff at CCHCS were unable to locate nutritional 1 information for specific food items provided to Plaintiff in 2020” but defendant provided all 2 available current nutritional information for comparable food items. (ECF No. 30-1 at 3.) 3 The undersigned cannot order defendant to produce documents that are not in her 4 possession, custody, or control. Fed. R. Civ. P. 34(a)(1); see, e.g., Witkins v. Wise, 2:19-cv-0974 5 KJM KJN P, 2021 WL 2662182, at *3 (E.D. Cal. June 29, 2021). Defendant has stated that she 6 produced all documents with “information that could potentially satisfy Plaintiff’s requests” (ECF 7 No. 30 at 2.) and provided a declaration in support of that claim (ECF No. 30-1). By these 8 statements, defendant has represented that she possesses no documents responsive to these 9 requests. Plaintiff has not demonstrated that such documents are in the possession, custody, or 10 control of defendant. Fed. R. Civ. P. 34(a)(1). He also does not present a sufficient legal or 11 factual basis for the court to issue an order directing defendant to obtain these records from a third 12 party. As such, plaintiff fails to meet the requirements to compel production of these documents 13 from defendant. Id. 14 Based on the above, the motion to compel discovery will be denied as it relates to Request 15 Nos. 1-11. 16 C. VS and GI Vomiting Assessment Forms (Request Nos. 12-13) 17 Defendant states in her response that the Vomiting Assessment Refusal Forms requested 18 by plaintiff were not produced as they did not exist. (ECF No. 30 at 3.) Defendant claims that 19 she did not offer a vomiting assessment to the plaintiff and thus no refusal forms were generated. 20 (Id.) In his reply plaintiff appears to agree with this statement and be satisfied with this response 21 for discovery purposes. (ECF No. 31 at 4) (“This is true. C. Floyd did not offer these vomiting 22 assessments to plaintiff.”) As both parties agree that the VS and GI vomiting assessment forms 23 do not exist, these requests and the related portions of the motion to compel appear moot. 24 To the extent plaintiff still wishes to compel discovery, the court cannot order the 25 production of documents not in defendant’s possession, custody, or control. Fed. R. Civ. P. 26 34(a)(1). Defendant has represented that she does not possess documents responsive to plaintiff’s 27 request (ECF No. 30 at 3) and presented a declaration in support of that (ECF No. 30-1 at 3). 28 Defendant has not demonstrated that defendant has possession, custody, or control of these 1 | documents. Fed. R. Civ. P. 34(a)(1). As such, even if plaintiff still seeks to compel production of 2 | these documents, this portion of plaintiffs motion would be denied. 3 Accordingly, the motion to compel production of documents responsive to Request Nos. 4 | 12-13 will be denied. As all of the requests for which plaintiff sought to compel discovery will be 5 | denied, the undersigned will deny plaintiffs motion to compel production of documents (ECF 6 | No. 27). 7 D. Deposition Transcript 8 From plaintiff's motion and his reply to defendant’s response, it does not appear that 9 | plaintiff intended to request a free transcript of the deposition proceedings. Plaintiff does raise 10 | concerns over the fact that, as a deponent, he did not have the opportunity to review and provide 11 | corrections to the provisional deposition transcript under Federal Rule of Civil Procedure 30(e). 12 | (See ECF No. 31 at 2-3.) However, it does not appear plaintiff has brought a related motion or 13 || requested any action from the court. As such, there is nothing presently before the undersigned as 14 | to the deposition transcript. 15 CONCLUSION 16 For the reasons set forth above, IT IS HEREBY ORDERED that plaintiff's motion to 17 || compel production of documents (ECF No. 27) is denied. 18 | Dated: October 20, 2022
20 1 BORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 DB:14 | DB/DB Prisoner Inbox/Civil Rights/S/erav2327.mte(2) 26 27 28